Meddis v. Dellinger

Opinion op the court by JUDGE WHITE — Apjtbming. This is an action for specific performance of a contract of sale of realty. Appellant admitted the contract, but declined to comply, because, as he alleged, appellees were unable to convey a title in fee, for various defects in the title suggested in the answer. The court sustained a demurrer to the answer, and adjudged specific performance, and hence this appeal. It is alleged in the answer that appellee derived title by purchase at a judicial sale in an action to settle the estate of Louis Lentz, deceased; that Lentz derived title [504] ’by purchase at judicial sale in an action No. 32,754, brought '-by Floyd Frye, to sell said land in order to its reinvestment. It is in this action No. 32,754 that there is a defect of title pleaded. The facts as to that action are that Floyd Frye was the owner and holder under the will of his ^grandfather, Floyd Parks, of a defeasible fee in this land, the defeasance being that Frye should die without issue -of his body. Frye instituted action No. 32,754 to sell the 'land and to reinvest the proceeds in other property in the .State of Indiana. In that action Frye made all living persons who might take under the will of Floyd Parks in case of defeasance parties defendants. All who would first take under the will were either actually served with process or appeared and answered, but some of the defendants to that suit who might, in case of defeasance, inherit through the parents, or take under the will by reason of the death of their parents, if that should occur before defeasance, were nonresidents, and were not personally served, and did not appear. It appears from the record of that suit No. 32,754 that an affidavit for warning order was made, and the clerk indorsed on the petition and on his docket that a warning order had been made., and an attorney appointed to represent the nonresidents ; but the warning order itself is not in the record. It was not written on the petition, and is not found in the papers of the case. The nonresidents’ attorney made his report, and the proceedings thereafter are regular, as the record shows. The land was sold, and by judgment the proceeds were invested1 in lands in Indiana, to be held under the same conditions and limitations as the lands here were held by Frye. These proceedings and judgment were-had and rendered in 1878. It is alleged that the appellee, Dellenger, 'since his purchase at decretal sale, had [505] brought an action to quiet his title, in whidh he obtained judgment, but that in that action there were nonresidents constructively summoned, and that such judgment had not been rendered five years, and it was therefore possible for any defendant herein to obtain a new trial if the defect suggested in action No. 32,754 was well taken, and thereby rendered the judgment and decree void. The * question presented by the answer pleading a defect m the title is: Is the judgment rendered in 1878 at the instance of Floyd Frye — case No. 32,754 — void by reason of the fact that the warning order written out ’by the clerk, does not appear in the record or papers on file? In our. opinion, this does not render the judgment void. Aside from the question of whether the nonresidents therein were necessary parties to that suit, we are of opinion, and so hold, that the mere failure to find the written warning order made by the clerk will not authorize the court, at this remote period of time, to declare the judgment void. The record leaves no doubt that a warning order was made. The clerk so certifies on the petition, and also makes such a memorandum on his docket book. These indorsements are: “Pet. and aft. fid. and 2 exhs. fid. iSum 14 cos. issd. W. O. and L. A. Wood atty. Att.: S. F. Chipley, clk.” These entries evidently mean, “Petition and affidavit filed, 2 exhibits filed. Summons and! 14 copies isisued. Warning order and L. A. Wood, attorney. Attest: S. F. Chipley, Clerk.” These are the usual file marks of the clérk of his acts, and are made by him in his official capacity. After the lapse of more than twenty years, the court must conclude, in the absence of a contrary showing, that this certificate of the clerk is true, and that the warning order was made. The report or answer of the warning order attorney is on file, and, as this is a juris [506] dictional fact, we are authorized to presume in favor of the jurisdiction, rather than against it. It may not have been possible or practical to write the warning order on the petition. If it had been written on a separate piece of paper, and attached to the petition, it would have been sufficient. It could not be that, if it was detached f tom the petition, and lost, the judgment would be destroyed. We must presume that it was written as the olerk certifies, and has been lost out of the papers, which presumption upholds the judgment, rather than ignore the certificate, and the docket entry, and the other facts apparent from the record, and from the mere failure, after twenty years, to find the warning order in the records, declare a solemn decree of a court of general jurisdiction void. Newcomb’s Ex’rs v. Newcomb, 13 Bush, 544, 26 Am. Rep., 222; Wilson v. Teague, 95 Ky,. 47 (15 R. 414) 23 S. W., 656; Sears’ Heirs v. Sears’ Heirs, 95 Ky., 173 (15 R. 510) 25 S. W., 600, 44 Am. St. Rep. 213; Berry v. Foster, 22 Ky. Law Rep., 745 (58 S. W., 709.) In this view of the case it is immaterial that the nonresidents in the suit by appellee'to quiet title may yet have time to answer and set aside the judgment, as they can not, .so far as the facts appear herein, present a valid objection to the old action No. 32,754, from which appellee obtained title. We conclude, therefore, the answer of appellant, Meddis, presented no defense to this action, and the demurrer thereto was properly .sustained. Judgment affirmed.